How will the new duty impact employers

Employers can already be liable for the acts of their own employees in the course of employment (such as the sexual harassment of another staff member). They can avoid liability for such claims by show that they had taken “all reasonable steps” to prevent the harasser from committing sexual harassment. The new duty flips this by placing a new positive obligation on employers. You will need to anticipate scenarios which pose a risk of sexual harassment occurring and have measures in place to prevent it.

Failure to comply could lead to:

• Increased compensation in the Employment Tribunal – whilst a worker cannot bring a free-standing claim for breach of the new duty, if the Employment Tribunal makes a finding of harassment in the course of employment which includes sexual harassment to any extent, they must consider whether the employer has complied with the new positive duty to prevent sexual harassment and, if not, can increase the compensation payable by up to 25%.
• Equality and Human Rights Commission (ECHR) action – broadly, this is likely to result in the EHRC seeking an action plan from you or requiring you to enter into a binding agreement under which you commit to bring about change (with the possibility of a court injunction if necessary).
• Reputational damage and employee relations issues – we’re all familiar with serious stories in the press relating to sexual harassment claims and the damage this can have on a business. This will only be magnified by a Tribunal finding that reasonable steps aren’t being taken to prevent your workforce from sexual harassment. Regardless of the legal obligation, this is an important cultural shift for businesses to embrace.

Factors to consider in a risk assessment

Notably, this duty extends to preventing sexual harassment of your workers by third parties, e.g. customers, suppliers and intermediaries. It is therefore important to consider a broad range of scenarios which could pose a particular risk to your workers.

The EHRC has recently consulted on updating its technical guidance (the proposed amendments can be found here). The current technical guidance recommends that risk assessments should be carried out considering the following factors:

• Power imbalances.
• Job insecurity.
• Lone working.
• The presence of alcohol.
• Customer-facing duties.
• Particular events that raise tensions locally or nationally.
• Lack of diversity in the workforce.
• Workers being placed on secondment.

As you can see, whilst all employers should carefully consider this new duty, there are certain types of businesses and activities are higher risk. For example, those in the hospitality sector will need to carefully consider the risk which the presence of alcohol poses with reference to sexual harassment. Professional services firms and other highly hierarchical businesses will need to consider power imbalances and the perception around career prospects and job security.

What can employers do to comply?

Importantly, although the duty comes into force on 26 October 2024, you should be taking steps now to ensure you are in a position to comply from day one.

Whilst it is impossible to prepare an exhaustive list of reasonable steps, as each business has its own risk profile and level of resources, examples might include the following (which should all be implemented bearing in mind the risk assessment you have undertaken above):

• Prepare a sexual harassment policy – whilst this is unlikely to be sufficient as a standalone measure, it will set out your zero-tolerance approach and expectations. It is a useful step when combined with other actions. You may also want to appoint a designated individual as the person to report to (similar to a designated whistleblowing officer) as opposed to, for example, a line manager.
• Providing training (ahead of the new duty, when onboarding new employees, and at least annually thereafter) – consider:
  o Training for all staff on sexual harassment, including what it is, expected standards of behaviour, and how to report sexual harassment.
  o Training for managers in dealing with complaints of sexual harassment and conducting investigations.
• Anonymous staff surveys – surveys are primarily useful for understanding the ‘reporting gap’ (meaning how many people have faced sexual harassment but not reported it, and why), and establishing what further steps staff think could reasonably be taken to prevent it.
• Supplier contractual obligations –an obligation on third parties in any supplier contract to ensure that they / their staff do not harass or sexually harass your staff. You may wish to go further and create a supplier code of conduct, particularly where those suppliers are often present on your premises or your staff go out to them.
• Relationships at work policy – you may already have a policy in place, but if you don’t, this may be a good time to do so. A duty to disclose any workplace relationships is often the minimum expectation. The policy should then set expectations around what the business will do once a relationship is disclosed and what wouldn’t be appropriate, e.g. manager and subordinate relationships which can pose a heightened risk due to the power imbalance. Someone can be a victim of sexual harassment even if they are not the intended ‘target’ of the relevant act, so you should give clear guidance on what isn’t appropriate at work between the people in the relationship, for the benefit of others in their vicinity.

There will be no “one-size-fits-all” approach to the new duty, and compliance will require careful consideration. For moral, financial and reputational reasons, it is a duty worth taking the time to get systems in place to get right.

We can assist you by providing advice on the preventative steps appropriate for your business and sector, drafting policies and delivering training, so please reach out to our employment team for advice.